FOURTH DIVISION
BARNES, P. J.,
RAY and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 28, 2016
In the Court of Appeals of Georgia
A15A2324. TESTON et al. v. SOUTHCORE CONSTRUCTION,
INC.
RAY, Judge.
Angela Teston and her husband sued Southcore Construction, Inc. seeking to
recover from injuries she sustained when Teston tripped and fell over electric cords
that were exposed during an office renovation. After discovery, the trial court granted
Southcore’s motion for summary judgment. Teston appeals from that order. For the
following reasons, we reverse the trial court’s grant of summary judgment.
We review the grant of a summary judgment motion de novo, viewing the
evidence and all reasonable inferences and conclusions drawn from it in the light
most favorable to the nonmovant. Nosiri v. Helm, 301 Ga. App. 380, 380 (687 SE2d
635) (2009).
The facts show the following: At the time of her fall, Teston was an employee
of TitleMax of Georgia, Inc. The TitleMax store front housed two related businesses,
TitleMax and Equity Auto Loan, a/k/a Instaloan, which are both subsidiaries of TMX
Finance, LLC. The store was “divided pretty evenly straight down the center,” with
TitleMax employees’ desks on the right side of the room and Equity Auto Loan
employees’ desks on the left side. The desks and furniture on the two sides of the
room were arranged in nearly identical fashion.
Prior to the date of the fall, TMX contracted with SouthCore to renovate the
premises in preparation for a new business to occupy the space. To prepare for the
renovation, SouthCore began to move furniture from the Equity Auto Loan side of
the store. Employees had been told about the move before it happened, and the work
occurred outside of business hours. The evening before Teston’s fall, SouthCore
removed most of the desks and office furniture from their usual locations on the
Equity Auto Loan side of the premises. The items remaining after removal were the
desk typically used by the store’s manager, Rickie Jarvis (the “Jarvis desk”), and a
credenza along the wall opposite the TitleMax side of the store. The desk had been
pulled several feet away from the wall. The fax machine had been moved to the end
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of the Jarvis desk. At the time of Teston’s fall, the TitleMax side of the store had
remained unchanged.
As a result of the removal of the desks and the rearrangement of the remaining
furniture, electric cords that had been previously concealed by the desks were
exposed. Notably, there were exposed cords that ran from the Jarvis desk to the outlet
on the wall. A mat had been placed over a portion of the newly exposed cords, but
there was a portion of the cords uncovered near the desk and near the wall. Jarvis
testified that there was only a “very small gap” between the mat and his desk where
the cords were exposed.1 Although Teston knew that SouthCore had removed
furniture from the Equity Auto Loan side of the store and employees had generally
been warned to “be careful” during the renovation, neither SouthCore nor TMX
warned her or anyone of the hazardous condition created by the exposed cords,
specifically.
On the date of her injury, Teston was at work on the TitleMax side of the store
when she needed access to an employee work schedule and the fax machine, both of
which she believed to be located on the Jarvis desk. As she walked across to the
1
A photograph showing a partial view of the cords and mat is a part of the
record.
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Equity Auto Loan side of the store to the Jarvis desk, Teston noticed a clear floor mat
near the desk, but she did not notice any exposed cords. Teston testified that she did
not see the cords “because [she] wasn’t looking down.” As Teston began to return to
her desk, she walked by the left side of the Jarvis desk, tripped on the newly exposed
electrical cords, and fractured her wrist. During her deposition, Teston drew a
diagram of her path to the Jarvis desk and her attempted return path, which indicates
that she took a similar path both to and from the Jarvis desk.
Jarvis testified that he did not provide SouthCore with any instruction in
regards to removing the furniture and did not have any knowledge as to how
SouthCore received instruction, if any, from TMX. Jarvis also testified that
SouthCore was responsible for putting the mat out that partially covered the cords
exposed by the desk removal.
SouthCore filed a motion for summary judgment, which the trial court granted.
In its order, the trial court found that the circumstances in this case created an
exception to the rule that a plaintiff-invitee typically has no obligation to
continuously look down while walking because Teston’s knowledge of the recent
furniture rearrangement “imposed upon her a heightened obligation to look for open
and obvious hazards where she was walking.” Therefore, the trial court held that “it
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is unreasonable for a person entering an office from which most furnishings have
been removed to fail to look for hazards such as exposed cables.” Teston then filed
a motion in the trial court requesting that the order be reconsidered. In her motion,
Teston argued that the trial court relied upon incorrect assumptions of fact. The trial
court denied the motion for reconsideration in an order which accepted several facts
set forth in the motion as true. The trial court reiterated its ruling that the removal of
the office furniture from the Equity Auto Loan side of the store “triggered a
heightened obligation to look for potential hazards created by the changes she was
aware of.” Teston appeals from those orders.
Teston argues, in two enumerations of error, that the trial court erred in
concluding, as a matter of law, that she did not exercise ordinary care for her own
safety in traversing the Equity Auto Loan side of the store and that she had a
“heightened obligation to look for hazards.”
The trial court is authorized to conclude, as a matter of law, that the facts do
or do not show negligence on the part of the defendant or plaintiff only where the
evidence is plain, palpable and undisputable. Robinson v. Kroger Co., 268 Ga. 735,
740 (1) (493 SE2d 403) (1997). Further, “[i]t is the plaintiff’s knowledge of the
specific hazard precipitating a slip and fall which is determinative, not merely her
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knowledge of the generally prevailing hazardous conditions or of hazardous
conditions which plaintiff observes and avoids.” (Citation and punctuation omitted;
emphasis supplied.) Nosiri v. Helm, 301 Ga. App. 380, 381 (1) (687 SE2d 635)
(2009).
Here, there is no question that Teston was aware that desks had been removed
and that the Equity Auto Loan side of the store front had been rearranged. She had
been informed of the renovation, it was obvious that furniture in the store had been
removed and rearranged overnight, and there is testimony that employees had been
warned to be careful in the store. However, there is no evidence that, at the time of
her fall, Teston was aware of the existence of the cords protruding from the under the
clear plastic floor mat to the Jarvis Desk. “Whether [Teston] exercised that duty of
care commensurate with her knowledge . . . is a circumstance to be considered by the
jury in determining if appellant exercised due care for her personal safety.” (Citation
and punctuation omitted.) Id.
Teston testified that although she traversed the clear floor mat covering the
cables when she first approached the Jarvis desk, she did not see the cables because
she was not looking down at the floor as she walked. In Robinson, supra, our
Supreme Court rejected the argument that a plaintiff “fails to exercise ordinary care
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for personal safety as a matter of law when [she] admits she failed to look at the
location where she subsequently placed her foot.” Id. at 743 (1) (emphasis supplied).
This is because an invitee is “not required to maintain a constant lookout, but is
entitled to assume that the owner/occupier has exercised reasonable care to make the
premises safe.” (Citation and punctuation omitted.) J. H. Harvey Co. v. Reddick, 240
Ga. App. 466, 472 (c) (522 SE2d 749) (1999) (plaintiff who slipped and fell in a
grocery store did not fail to exercise ordinary care for her own safety, such that
summary judgment was warranted to defendant grocery store, despite testimony that
the plaintiff did not look down at the floor before she fell).
Therefore, “the issue is whether, taking into account all the circumstances
existing at the time and place of the fall, the invitee exercised the prudence the
ordinarily careful person would use in a like situation.” Robinson, supra at 748 (2)
(B). Although we note that this case may not be the strongest case for imposing
liability upon SouthCore, as a jury might conclude that Teston should have seen the
cords which caused her fall, we do not find that the circumstances in this case
automatically require such a finding and warrant an award of summary judgment in
Southcore’s favor. Because we find that “reasonable minds can differ, taking into
account all the circumstances at the time and place of the incident, the evidence does
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not plainly, palpably, and indisputably lead to the conclusion that [Teston’s]
placement of her foot on a site she had not previously inspected visually is an act
which is a want of such prudence as the ordinary careful person would use in a like
situation.” (Citations and punctuation omitted.) Robinson, supra at 743 (1). See
Nosiri, supra (summary judgment in favor of defendant was not appropriate when
plaintiff-employee had previously expressed concern about wires lying across the
floor of her work area, she had previously moved phone cords that posed a danger to
her, and on the day she fell, she was unaware where, or if, there was a cord present
in the passageway and her view of the cords she tripped on was obstructed by other
employees standing nearby).
Judgment reversed. Barnes, P. J., and Mercier, J., concur.
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